sexual health and human rights in the african region - The ICHRP

discriminated against females contrary to section 82 - the equality clause – of the
Kenyan Constitution. The Court said:
We think that the time has come to correct what we believe is a position which the courts have
hitherto taken without proper basis, if any basis existed for treating female witnesses differently
in sexual cases, such basis cannot properly be justified presently.
In this way, the Kenyan Court of Appeal repealed the cautionary rule
bequeathed by the common law received from the United Kingdom. Tanzania
has also followed suit. Section 27(7) of the Tanzanian Sexual Offences Act says;
Notwithstanding the preceding provisions of this section, where in criminal proceedings
involving sexual offence the only independent evidence is that of a child of tender years or of a
victim of the sexual offence, the court shall receive the evidence, and may, after assessing the of
the credibility of the evidence of the child of tender years, or as case may be the victim of sexual
offence, on its own merits, notwithstanding that such evidence is not corroborated, proceed to
convict, if for reasons to be recorded in the proceeding, the court is satisfied that the child of
tender years or the victim of the sexual offence is telling nothing but the truth.
The Supreme Court of Zimbabwe confirmed the repeal of the cautionary rule in
Banana v State. 598
5.7 State civil liability for failure to take steps to prevent sexual
violence
[38] This section considers jurisprudential developments in the area of delict (or the
tort of negligence) that have implications impact on sexual health through
protection from sexual violence. In terms of the African region, this is a new
development that is still limited to South Africa. The jurisprudence revolves
around imposing on the state a positive duty to take steps to protect the public
from violence including sexual violence as part of the state’s duty to ‘respect,
protect, promote and fulfil the rights in the Bill of Rights’ of the South African
Constitution. 599 This connection the section will consider the leading case on state
liability in negligence - Carmichelle v Minister of Safety and Security and Another. 600
[39] In Carmichelle the Constitutional Court laid down the proposition of law that
under section 39(2) of the Constitution, courts have a mandatory duty to develop
common law so as to render it consonant with the spirit, purport and objects of
the Constitution, including where appropriate developing the law of delict (or
the tort of negligence) so as to positive duty on the state to take reasonable steps
to protect individuals from violence whether it be sexual violence or other types
of violence. Section 39(2) says: ‘When interpreting any legislation, and when
598 S v Banana 2000 3 SA 885 (Supreme Court of Zimbabwe).
599 Section 7(2) of the Constitution.
600 2001 (4) SA 938 (Constitutional Court of South Africa).
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